The Consumption of Alcohol and Travel Insurance and the Canadian Visitor to the United States

In an article entitled, “Travel Insurance and the “Pre-existing Condition” Enigma and the Canadian Visitor to the United States of America (or Elsewhere)”, I discussed stability clauses that are found in most travel insurance policies and the impact that a pre-existing medical condition may have in the ability to obtain travel insurance coverage. For the Canadian Snowbird or anyone travelling to the U.S. or elsewhere for any extended period, the importance of travel/emergency medical insurance is well documented.

As we grow older, unexpected or unforeseen medical conditions or episodes become a stark reality and often become a topic of our “happy hour” conversation.  Invariably during one of these “intellectual” gab sessions, someone will relate the experience of a friend or acquaintance at the border crossing or the circumstances surrounding an unfortunate incident and trip to the hospital. This will often then become a focal point of discussion.

It is not uncommon in this setting for a comment to be made during this discussion which peaks my interest and which causes me to make a legitimate enquiry, either to “debunk” something which has been stated as a fact and which appears not to ring true or more often, to elucidate on something that was not previously known to me or was a subject for which I was not familiar. As has been my practice, I will then research and write on the subject not only to educate myself but hopefully inform others.

This has given rise to a series of articles on the Canadian Visitor to the United States, all of which can be found on my personal homepage at http://wjanhorn.ca or you can simply google William J Anhorn QC

“Happy Hour”

A recent “happy hour” conversation and companion tale of woe gave rise to a further enquiry which I found of some interest and has resulted in another installment in the series.

As the story goes, a Canadian senior was walking home late at night in a gated community in Mesa, Arizona after having consumed a quantity of alcohol. He slipped and fell and hit his head opening up a sizable gash on his head and quite understandably, he was in medical distress. Some other residents out walking their dog came upon him moments after the accident and immediately called 911. The paramedics arrived and he was taken by ambulance to the hospital and among the diagnostic blood tests, a toxicology report was completed, which showed a blood alcohol level well beyond or in excess of the prescribed or legal limit. Again, I mentioned that he was walking, not driving. He was admitted overnight for observation to insure that he did not sustain a concussion and was discharged the following day. He submitted his medical expenses for the attendance at the emergency department and overnight hospital stay to his travel insurer for reimbursement. His insurer investigated the circumstances of the accident and resulting medical treatment and hospitalization and denied the claim.

Claim Denied?

What formed the basis for the travel insurance company denying the claim and what implications does that have to the Canadian Visitor to the United States?

All insurance policies have a Section commonly called or referred to as:  “Limitations and Exclusions” and as one might expect, this is a section of the policy of insurance which both identifies the limits of the coverage, typically in dollar amounts and exclusions- things or matters which are not covered under the policy of insurance. Travel insurance is no exception.

Most travel insurance policies have an exclusion as it relates to alcohol that reads something along these lines: "We will not pay under any circumstances if you were under the influence of any intoxicating liquor or drugs, except a drug prescribed to you by a Medical Adviser, and taken in accordance with their instructions."

MEDOC, which is among the premier travel insurance providers to Canadians and which is endorsed and promoted by the Canadian Snowbird Association has a clause which reads as follows:

“This insurance does not cover any expenses incurred directly or indirectly as a result of the following:

11. Medication, drugs or toxic substance abuse or overdose or your deliberate non-compliance with prescribed medical therapy or treatment: alcohol abuse, alcoholism or an accident while being impaired by drugs or alcohol or having an alcohol concentration that exceeds 80 milligrams in 100 milliliters of blood.

This clause and similar clauses like it are referred to as an “alcohol exclusion” provision and are common in one form or the other in ALL travel insurance policies.

What is a travel insurance “alcohol exclusion” and what does it mean?

Travel insurance is intended to provide emergency medical benefits or coverage within certain prescribed limits. Depending on the precise wording of the policy, an alcohol exclusion clause means that in certain circumstances where the consumption of alcohol may have been a contributing factor, the insurance company may deny a claim or you may not qualify for coverage.

Under what circumstances can a travel insurance provider deny coverage under this provision?

There is a general principle in insurance law that an insured cannot take advantage or benefit from his own malfeasance or bad conduct. Being intoxicated by alcohol does not invalidate or void the policy but if it is determined that the level or degree of intoxication was a contributing factor, then the benefits that might otherwise be available may be denied. The issue, broadly speaking, is to what extent or to what degree did the consumption of alcohol or the level or degree of impairment or intoxication contributed to the accident or injury for which medical treatment was being sought.

Generally, most insurance companies that offer travel insurance/emergency medical coverage are quick to cover legitimate claims. However, they may take longer to process claims where there is evidence that alcohol consumption or intoxication has been a contributing factor or was the proximate cause of the injury or incident that required medical attention.

Just as there is a presumption of innocence in criminal cases and a requirement in civil cases of evidence on a balance of probabilities, there is an evidentiary burden upon the insurance company to establish with credible evidence that the consumption of alcohol was directly related to the claim being made. Conversely, if there is evidence of alcohol consumption but the injury or requirement for medical treatment is completely unrelated, then it is likely in these circumstances that the claim will be approved and the cost of medical treatment will be reimbursed.

Shades of Grey

Unfortunately, seldom are these situations black and white but rather they can become extremely complicated by various shades of grey. Each situation has its own unique fact pattern and it is trite to say that no situation is exactly the same.

But here are some observations that may be helpful.

First and foremost is that in seeking out travel insurance coverage or before embarking on your next trip and relying upon coverage which is already in place, ask to see or review the “Limitation and Exclusions” Section of the policy and in particular, the alcohol exclusion provision. Not all policies are the same and there is no “standard” provision. Some clauses are quite specific and detailed while others are more generic. Still others are vague and open to an interpretation which is more favorable to the insurer. Take for example, the MEDOC wording of the alcohol exclusion clause. It might be argued that by establishing the scientific measurement that they have established an empirical standard as a basis for a denial, regardless of the circumstances.

 Secondly, Canadians are generally aware that our American “cousins” are inherently litigious and there are countless examples of lawsuits being advanced for seemingly innocuous conduct or circumstances. Police departments and emergency medical services have not been immune from this kind of lawsuit. As a consequence many ambulance and EMT services have adopted rigorous and strict policies regarding calls for assistance and their attendance at an accident. If there is any evidence of injury or distress, the EMT’s and police will insist that the victim be transported to the hospital to be assessed or evaluated. Therein lies the dilemma for the unsuspecting Canadian, who may have overindulged.

Police officers are trained observers and accomplished note takers all of which will find its way into a police report. Emergency medical personnel and doctors because of its prevalence in emergency departments are trained to assess and observe levels or degrees of intoxication and to make copious notes for obvious reasons. Blood tests including toxicology reports identifying with scientific precision the blood alcohol level of the patient are not uncommon and often become routine.

For the naïve or unsuspecting Canadian visitor, these medical enquiries although well intended can provide irrefutable evidence to the “delight” of the insurance company who suspects that alcohol may have been a contributing factor regarding an injury, all of which could give rise to a denial of medical coverage.

Insurance fraud investigators once assigned will leave no stone unturned in making legitimate enquiries in support of their denial of coverage. Obtaining police reports and medical records would be an obvious first step. It is not uncommon for astute investigators to access social media and to gather evidence that the insured was acting recklessly due to the consumption of alcohol at or near the time leading up to the accident or that there was a demonstrable pattern of bad conduct as it relates to alcohol.

Unfortunately many insurers see numerous claims related to alcohol consumption and the creation of a universally accepted “alcohol exclusion” provision is consistent with the desire of the insurance industry to reduce their risk and exposure to claims.

For the Canadian Visitor to the United States of America, being mindful of these insurance provisions is important and may cause one to think twice about taking that next offer of a drink during the infamous “happy hour”.

I wish I could report that the hypothetical incident to which I referred in the first instance resulted in a positive outcome. Judging by its notoriety however, I suspect that not to be the case. In a reported decision out of the British Columbia Court of Appeal in Stephen Ramsay vs The Voyageur Insurance Company, almost identical circumstances gave rise to a denial of coverage, which was upheld by the court.

That is not to say that similar events or circumstances would always give rise to the same conclusion. It largely depends on the wording of the alcohol exclusion clause and the “attitude” of the insurer adjusting the claim.

Being aware of the nature of your travel insurance coverage and its limitations and exclusions is a prudent exercise.

So too is drinking in moderation while on your vacation or  an extended holiday to the U.S. or anywhere!

William J. Anhorn QC ICD.D